BVA9501732 
DOCKET NO.  93-03 932     )       DATE
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manila,
Philippines

THE ISSUE

Entitlement of the surviving spouse of the veteran to dependency
and indemnity compensation (DIC) following the termination of
remarriage.

ATTORNEY FOR THE BOARD

James L. March, Associate Counsel

INTRODUCTION

The veteran had active service with the recognized guerrillas in
the Philippines from February 20 to March 19, 1945.  This appeal
comes to the Board of Veterans' Appeals (Board) from a February
1992 decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Manila, Philippines.

CONTENTIONS OF APPELLANT ON APPEAL

In essence, the appellant contends that she is entitled to DIC.
She alleges that her second marriage, which resulted in the
termination of death benefits, ended with the death of her
husband; thus, she maintains that restoration of death benefits
is in order.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims files.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the appellant's claim for restoration of death
benefits is not legally sufficient.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of the
appeal has been obtained.

2.  The appellant and veteran were married in May 1941, and were
still married when the veteran died in service in March 1945.

3.  The appellant subsequently married Cornelio Tabasondra
(Cornelio) in February 1951.

4.  Her second marriage was terminated by the death of Cornelio
in March 1991.

5.  In May 1991, the appellant reapplied for DIC as the
unremarried widow of the veteran.

CONCLUSION OF LAW

The appellant's claim for DIC benefits as the surviving spouse of
the veteran is legally insufficent.  38 U.S.C.A. §§ 101(14), 103
(West 1991); 38 C.F.R. § 3.55 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The basic facts in this case are not in dispute and may be
briefly described.  The appellant and veteran were married in May
1941.  They remained married until the veteran died in March
1945, while in the service.  It is not clear from the record
whether the appellant was subsequently awarded death benefits as
the surviving spouse of the veteran, but in any event her
marriage to Cornelio Tabasondra (Cornelio) in February 1951 would
have terminated any such award, and she was so notified.

In May 1991, the appellant filed a claim for DIC as the surviving
spouse of the veteran.  In support of her claim, she submitted a
copy of a certificate of death reflecting the death of Cornelio
on March 15, 1991.  A field investigation confirmed these facts.

The Board notes that the Onmibus Budget Reconciliation Act of
1990, Public Law 101-508, provides that remarriage of a surviving
spouse is a permanent bar to receiving benefits based on the
veteran's service.  That change is effective for claims filed
after October 31, 1990.  However, Public Law 102-83 restored
eligibility for VA benefits in the case of certain remarried
spouses who were eligible for such benefits on October 31, 1990,
but who had not filed claims prior to the effective date of
Public Law 101-508.  38 C.F.R. § 3.55 reflects these changes.

In this regard, the Board notes that the record clearly indicates
that the appellant's marriage to Cornelio did not terminate until
his death in March 1991.  Therefore, the appellant was not
eligible for VA benefits on October 31, 1990, because she was
still married as of that date.  Although the Board is sympathetic
to her claim, the laws and regulations are binding on the VA and
cannot be disregarded.  Consequently, the Board finds that there
is no legal basis on which the veteran's claim can be based.  As
the law and not the evidence is dispositive in this case, the
appeal is terminated due to absence of legal merit.  See Sabonis
v. Brown, 6 Vet.App. 426, 430 (1994).

ORDER

The appeal is dismissed.

          ROBERT E. SULLIVAN
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a

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determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.